Cheney Role Risks Political Fallout

CIA-Leak Case May Hand
War Critics Momentum,
But Legal Issues Are Slim
By ANNE MARIE SQUEO and JOHN D. MCKINNON
February 11, 2006; Page A4

WASHINGTON -- The disclosure that Vice President Dick Cheney may have authorized his former chief of staff to release classified information to justify the war in Iraq has political consequences for the White House, but the legal fallout may be muted.

Mr. Cheney, in his role as second-in-command of the country, has significant leeway, albeit not as much as the president, to declassify information. The information I. Lewis Libby, the chief of staff, said he was authorized by his superiors to discuss with reporters was the October 2002 National Intelligence Estimate titled "Iraq's Continuing Programs for Weapons of Mass Destruction."

The 90-page report, prepared by the National Intelligence Council for the director of the Central Intelligence Agency, was prepared in advance of the March 2003 invasion of Iraq and became the subject of intense focus in mid-2003, after weapons inspectors failed to find evidence that Saddam Hussein had been building such weapons. Mr. Libby has been indicted on charges of lying and obstruction of justice related to a federal probe into whether administration officials intentionally blew the cover of a CIA official.

"The president can declassify anything," William Banks, a Syracuse University law professor and expert on national-security law, said. While the president would have to amend his own executive order governing secrets in order to declassify something on the fly, that can be accomplished very informally, even orally and in secret. "He could do it on a cocktail napkin," Mr. Banks said.

The vice president's authority to declassify is less clear. Some legal scholars believe that Mr. Cheney would share in the president's authority, as an elected official. Alternatively, the president could delegate his declassification authority to the vice president.

"The classification system is rooted for the most part not in statute but in executive order. ...In the case of the NIE, the White House was free to declassify it at a moment's notice," said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists, which favors increased public access to government information.

On July 18, 2003, the administration, facing criticism for the intelligence used to justify the war, declassified an eight-page part of the NIE dubbed "key judgments" and conducted a lengthy background briefing with reporters to discuss it.

As such, the trial of Mr. Libby, scheduled to start early next year, is likely to resurrect a sensitive issue for the Bush administration going into November's midterm congressional elections: the rationale for the Iraq war and tactics used to quell criticism.

The implication from the disclosure that Mr. Libby had authority to discuss sensitive intelligence matters with the press "is that the White House -- the vice president -- has been using his declassification authority as a way to advance the administration's political agenda," said Mr. Aftergood. "In other words, information that supports the administration's position on Iraq or whatever is selectively declassified and other information is not. That's not a criminal offense, but it's kind of sleazy."

The investigation into who leaked the identity of CIA agent Valerie Plame to the media continues, though Mr. Libby has been the only one charged. The five-count indictment against him doesn't actually allege he leaked Ms. Plame's name or that he disclosed classified information. Yet both factors are expected to factor into the government's case against him.

Special Prosecutor Patrick Fitzgerald disclosed Mr. Libby's authorization to release NIE information in a letter to Mr. Libby's defense team last month. That letter, which recapped discussions between the two sides in the case, was filed with the court as part of a motion to compel Mr. Fitzgerald to turn over information he had refused to provide. A judge is expected to rule on the matter in coming weeks.

Mr. Fitzgerald doesn't say in the court filings that Mr. Libby's superiors gave him permission to disclose Ms. Plame's identity. A 1982 federal law makes it illegal to intentionally blow the cover of a covert agent, potentially endangering the agent's life and those with whom the agent works. A spokesman for Mr. Fitzgerald declined comment.

Mr. Fitzgerald makes clear in his letter that his interest in mentioning the authorization isn't to show some motive or intent. Rather, he notes that Mr. Libby's discussions with reporters, where he is alleged to have discussed Ms. Plame's identity, are "inextricably linked" to the administration's efforts to shore up support for the war, in part by citing the intelligence report.

Mr. Libby's attorneys have said they don't plan to raise a defense based on authorization by superiors. In recent court filings, they have indicated that they are likely to focus on the demands of Mr. Libby's job and suggest that any inconsistencies between his testimony and other facts are the result of a mistake, not an intent to lie.

Ms. Plame, who has since retired from the CIA, was first named in a newspaper column by Robert Novak on July 14, 2003, that cited two senior administration officials. That article and subsequent ones discussed White House reaction to public criticism of the war a week earlier by Ms. Plame's husband, former ambassador Joseph Wilson. Mr. Wilson had been sent by the CIA to check out claims that Iraq had sought uranium ore, critical to making nuclear weapons, from Niger, and found no evidence to support that.

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